Citation Nr: 0422874
Decision Date: 08/19/04 Archive Date: 08/24/04
DOCKET NO. 04-00 832 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an effective date earlier than December 17,
1998, for the grant of a total disability rating based on
individual unemployability due to service-connected
disability (TDIU).
REPRESENTATION
Appellant represented by: Richard A. LaPointe, Attorney
ATTORNEY FOR THE BOARD
Steven D. Reiss, Counsel
INTRODUCTION
The veteran served on active duty November 4, 1955 to
December 22, 1955 and from December 1961 to December 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania, that implemented a February 2003
Board decision increasing the evaluation of the veteran's
service-connected anxiety reaction to 70 percent and
establishing his entitlement to a TDIU; the RO assigned
January 3, 1997, as the effective date of the increased
rating for the veteran's anxiety reaction, and December 17,
1998, as the effective date of the award of a TDIU. In his
timely appeal of the March 2003 determination to the Board,
the veteran challenges the effective date assigned by the RO
for entitlement to a TDIU.
FINDINGS OF FACT
1. On January 3, 1997, the veteran, in filing a claim for an
increased rating for anxiety reaction, asserted that he was
unemployable and totally disabled due to this condition.
2. The veteran's anxiety reaction is evaluated as 70 percent
disabling, effective January 3, 1997.
3. In the Board's February 2003 decision, the Board found
that the veteran's anxiety reaction, his sole service-
connected disability, produced a disability picture that more
nearly approximated the veteran being prevented from securing
and following substantially gainful employment.
CONCLUSION OF LAW
The criteria for an effective date of January 3, 1997, for
the grant of a TDIU, have been met. 38 U.S.C.A. §§ 1155,
5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and
codified as amended at 5102, 5103, 5106 and 5107 (West 2002))
redefined VA's duty to assist a veteran in the development of
a claim. Guidelines for the implementation of the VCAA that
amended VA regulations were published in the Federal Register
in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)). The Board finds that all relevant evidence
has been obtained with regard to the veteran's claim of
entitlement to an effective date prior to December 17, 1998,
for a TDIU, and that the requirements of the VCAA have in
effect been satisfied.
VA has associated with the claims folder records of the
veteran's private and VA care. In addition, he and his
attorney have been provided with a Statement of the Case
(SOC) that discusses the pertinent evidence, and the laws and
regulations related to the claim, and essentially notified
them of the evidence needed by the veteran to prevail on the
claim. In an April 2001 letter, the RO notified the veteran
of the VCAA and offered to assist him in obtaining any
relevant evidence. By way of these communications, VA gave
notice of what evidence the appellant needed to submit and
what evidence VA would try to obtain. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); see also VAOPGCPREC 1-
2004, 69 Fed. Reg. 25,180 (2004). There is no identified
evidence that has not been accounted for and the veteran's
attorney has been given the opportunity to submit written
argument.
Further, in light of this decision, in which the Board finds
that an effective date of January 3, 1997, is warranted for
the grant of a TDIU, the veteran has been provided with
adequate notice of the evidence needed to successfully prove
his claim and that there is no prejudice to him by appellate
consideration of the claim at this time to comply with the
VCAA. Bernard v. Brown, 4 Vet. App. 384 (1993); see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). Hence, no
further notice or assistance to the veteran is required to
fulfill VA's duty to assist him in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001).
Background and Analysis
The veteran contends that an effective date prior to December
17, 1998, is warranted for the grant of a TDIU. Citing 38
C.F.R. § 3.400(o)(2), his attorney points out that a claim
for increase can be granted effective up to one year prior to
the date of the claim if the medical evidence dated in the
year prior to the filing of the claim supports that increase.
As such, his attorney essentially maintains that the grant of
benefits should be effective December 17, 1997, i.e., one
year prior to his December 17, 1998, filing of a formal TDIU
application.
A brief summary of the pertinent evidence shows that on
January 3, 1997, in filing his claim for an increased rating
for anxiety reaction, the veteran asserted that he was
unemployable and totally disabled due to this condition.
Further, on December 17, 1998, he filed a formal claim
asserting entitlement to TDIU.
In the Board's February 2003 decision, the Board increased
the evaluation of the veteran's sole service-connected
disability, his anxiety reaction, to 70 percent. The Board,
reviewing evidence dated since February 1997, further
concluded that the veteran was rendered unemployable based
solely on his increasing severe service-connected anxiety
disorder.
As noted in the introduction, in the RO's March 2003 rating
decision implementing the Board's February 2003
determinations, it assigned January 3, 1997, as the effective
date of the increased rating for the veteran's anxiety
reaction, and December 17, 1998, as the effective date of the
award of a TDIU. In assigning those effective dates, the RO
explained that each was selected because it represented the
date that each claim was received.
As the veteran's attorney correctly points out, the effective
date of an award of increased compensation is the earliest
date that it is factually ascertainable that an increase in
disability has occurred if the claim is received within a
year from that date; otherwise, the effective date is the
later of the date of increase in disability or the date of
receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R.
§ 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27
(1997). Further, a claim for a TDIU is, in essence, a claim
for an increased rating. Norris v. West, 12 Vet. App. 413,
420 (1999). A TDIU claim is an alternate way to obtain a
total disability rating without recourse to a 100 percent
evaluation under the rating schedule. See Parker v. Brown, 7
Vet. App. 116, 118 (1994). Once the veteran files a formal
claim for disability compensation under 38 C.F.R. § 3.151, he
obtains the procedural benefits bestowed by 38 C.F.R.
§ 3.155(c), which provides that an informal request for
increase or reopening will be accepted as a claim. Norris v.
West, 12 Vet. App. at 417. Under the provisions of 38 C.F.R.
§ 3.157(b)(1), an informal claim for increase will be
initiated by a report of outpatient examination or
hospitalization by VA or the uniformed services for
previously established service-connected disabilities. See
Servello v. Derwinski, 3 Vet. App. 196, 200 (1992) (holding
that a VA examination report constituted an informal claim
for a TDIU).
In addition, once a veteran submits evidence of a medical
disability, makes a claim for the highest rating possible,
and submits evidence of unemployability, the requirements of
38 C.F.R. § 3.155(a) that an informal claim "identify the
benefit sought" have been satisfied and VA must consider
whether the veteran is entitled to a TDIU. VAOPGCPREC 12-
2001, 69 Fed. Reg. 25175 (2004), interpreting Roberson v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001). Moreover, a
veteran is not required to submit proof that he or she is 100
percent unemployable in order to establish an inability to
maintain a substantially gainful occupation, as required for
an award of TDIU pursuant to 38 C.F.R. § 3.340(a). Id.
Further, in Schroeder v. West, 212 F.3d 1265 (Fed. Cir.
2000), the United States Court of Appeals for the Federal
Circuit (Federal Circuit) held that pursuant to the duty to
assist, VA was required to investigate all theories of
recovery, "including those unknown to the veteran." Id. at
1271. The Board is also required to consider all potentially
applicable provisions of law and regulation. Fortuck v.
Principi, 17 Vet. App. 173, 179 (2003); 38 U.S.C.A.
§ 7104(a). In addition, recently, in Szemraj v. Principi,
357 F.3d 1370 (Fed. Cir. 2004), the Federal Circuit, citing
its decision in Roberson, reiterated that VA must give a
sympathetic reading to the veteran's filings to determine all
claims for recovery supported by a liberal construction of
allegations. Id. at 1373.
Here, there veteran asserts entitlement to an effective date
one year prior to his filing of a formal TDIU application on
December 17, 1998, i.e., he seeks an effective date of
December 17, 1997, for the grant of this benefit. In light
of Roberson, Szemraj, and VAOPGCPREC 12-2001, however, the
Board finds that the veteran's January 3, 1997, statement
constituted an informal application for a TDIU. Moreover,
given the Board's February 2003 determination that the
veteran was unemployable due solely to his service-connected
anxiety reaction, and the RO's assignment of January 3, 1997,
as the effective date of the increase of the evaluation to 70
percent, the Board concludes that the effective date of the
TDIU should also be January 3, 1997. As such, entitlement to
an earlier effective date for an award of a TDIU has been
shown, and the veteran's appeal must be granted.
The Board further finds that entitlement to an effective date
for a TDIU, prior to January 3, 1997, is not warranted. In
this regard, the Board notes that in an unappealed July 1989
rating decision, the RO denied the veteran's claim of
entitlement to an increased rating for his anxiety reaction,
then evaluated as 10 percent disabling. Absent clear and
unmistakable error in that determination, which the veteran
does not even allege, it is final.
In addition, a careful review of the record fails to disclose
that he filed another formal or informal claim seeking either
an increased rating or a TDIU prior to January 3, 1997.
Moreover, there is no medical evidence suggesting that the
veteran was unemployable prior to February 1997. In light of
the foregoing, an effective date prior to January 3, 1997,
for an award of a TDIU, is not warranted.
ORDER
An effective date of January 3, 1997, for the grant of a TDIU
is granted, subject to controlling regulations governing the
payment of monetary benefits.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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